News NY Appellate Division Rules Leaseholder Can Be Responsible for Sidewalk Fall February 23, 2010 < Back Share to: In Abramson v. Eden Farms Inc., the plaintiff tripped and fell over a cracked portion of the sidewalk abutting a store leased by Eden Farm. The plaintiff brought an action against Eden Farm for the personal injuries she suffered in her fall. Eden Farm moved for summary judgment arguing that it did not create the alleged defect in the sidewalk and that, as a leaseholder, it did not have a statutory duty to maintain the sidewalk in a reasonable safe condition. The trial court denied the motion and Eden Farms appealed. Upon appeal, the First Department affirmed the denial of Eden Farms motion. In its decision, the court noted that Eden Farm had ignored the provision of its lease that required Eden Farms to make all repairs and replacements to the sidewalks and curbs adjacent to the store. The First Department also found that there was a legal question whether the lease was “comprehensive and exclusive” that it would have reassigned the landowner's duty to maintain the sidewalk to Eden Farm. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01418.htm Previous Next Contact

News Unwitnessed Accident No Defense to Labor Law January 31, 2011 < Back Share to: In Campbell v 111 Chelsea Commerce, L.P., the Appellate Division, Second Department, upheld the lower court's decision to grant plaintiff summary judgment on her §240(1) Labor Law claim. Campbell was injured when the walkboard of the scaffold on which she was working collapsed. She was the only witness to her accident. On appeal, the defendants attempted to raise a question of fact, arguing that because Campbell was the only witness to her accident, the accident could have been caused by any number of reasons. The Second Department rejected this argument because it was based purely on speculation, and the facts were quite clear that the scaffold’s walkboard had collapsed while plaintiff was working on it. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00482.htm Previous Next Contact

News Failing to Preserve Arguments for an Appeal and Facts that “May or May Not” Exist (NY) September 14, 2018 < Back Share to: In Gordon v City of New York, the plaintiff sued the LIRR, the City of New York, and the Metropolitan Transportation Authority ("MTA") for injuries that occurred while performing excavation of rock under Grand Central Terminal. Plaintiff fell from a ladder that slipped out from plaintiff and he fell to the tunnel floor while fixing lights 15-20 feet above him. The defendants moved for summary judgment dismissing the complaint, which included Labor Law §§ 240(1) and 241(6) claims while the plaintiff moved for summary judgment on the issue of liability on the Labor Law §240(1) claim. The lower court entered an order granting the City of New York and the LIRR’s motions for summary judgment and denying plaintiff’s motions against all defendants. On appeal, the First Department affirmed the order granting the City of New York and the LIRR’s motions because affidavits were submitted based on the affiant's work and job duties for the City of New York and the LIRR and their knowledge of and familiarity of their business operations. The affidavits established that they did not contract for plaintiff’s work, nor did these defendants perform, supervise, or control any construction work at the subject premises. As plaintiff’s sole theory of the City’s ownership was that it owned land on which the project was located was not raised before the motion court, it was not properly before the Court. The plaintiff did not raise any other evidence to dispute the claims and the order granting summary judgment for the City of New York and the LIRR were affirmed. However, on appeal, plaintiff's entitlement under Labor Law §240(1) against the MTA, however was successfully argued because the record established a failure to provide plaintiff with proper protection for him to perform the elevation-related task of re-positioning the stadium light. The MTA’s opposition with an engineer’s testimony that there “may or may not have been” platforms available to tie the ladder to, was not enough to raise a triable issue of fact. The lower court reversed as to the MTA. This opinion contains a lesson about the long term effects of failing to raise an argument in the motion court that not only affects the decision in the motion court, but also affects the appeal. Thus, it is important to have counsel with the foresight to preserve arguments in anticipation of appeal. Furthermore, the case also demonstrates the importance of early defense counsel oversite in investigating the facts and witnesses with knowledge in anticipation of motion practice. Experienced counsel will be able to deal with gaps of knowledge from the witnesses provided by an insured. Rather than rely on such ambiguous testimony regarding things that “may or may not” exist, experienced counsel should take steps to investigate further to find records or other witnesses that may have actual knowledge of the circumstances of the accident that fill in those gaps to prevent a plaintiff being granted an early summary judgment. Thanks to Jonathan Pincus for his contribution to this post. Previous Next Contact

News NY High Court Addresses Additional Insured Coverage August 2, 2009 < Back Share to: The scope of additional insured coverage has been a hot topic in New York during the last few years. The most common fact pattern involves an accident on a construction project or leased property. New York's highest court recently addressed the scope of coverage afforded a landlord under its tenant's commercial general liability policy. In Kassis v. Ohio Casualty, the lease required the tenant to maintain a general liability policy "for the mutual benefit" of the landlord and tenant against claims for, among other things, bodily injury. As luck would have it, an employee of the tenant slipped and fell on the property and sued the landlord who was the only deep pocket not otherwise immune from suit by the workers compensation bar. The tenant obtained a CGL policy with Ohio Casualty, which included a broad form, automatic additional insured provision that extended coverage to "any person or organization whom [the named insured is] required to name as an additional insured on this policy under a written contract or agreement." The key issue was whether the lease term that required the tenant to obtain CGL coverage "for the mutual benefit of" the landlord and tenant triggered the policy's additional insured provision. The Court of Appeals observed that an additional insured generally enjoys the same coverage --unless limited in the AI language-- as the named insured. It then held that the only reasonable interpretation of the lease language ["for the mutual benefit of"] was that the landlord was entitled to the same level of coverage as the tenant. Case closed and victory for the policyholder. The lesson for insurers is clear: express any limitations on coverage extended to additional insureds clearly and unequivocally. The trend in New York is to read these provisions expansively. http://www.nycourts.gov/ctapps/decisions/2009/jun09/117opn09.pdf Previous Next Contact

News The Potential for Reform to US Maritime Law Increases. August 13, 2010 < Back Share to: We previously reported on efforts in Washington, D.C. to significantly modify maritime liability as a result of the BP oil spill -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=645. On July 1, 2010, the House of Representatives passed the Securing Protections for the Injured from Limitations on Liability Act (SPILL Act), HR 5503 -- http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.5503:. The bill has been referred to a Senate subcommittee which will then vote on whether to refer the bill to the entire Senate for a vote. A separate bill also has been proposed in the Senate. At the moment, Congress is on its summer recess and no action will be taken until the Senate reconvenes in mid-September. Even if the House bill passes the Senate subcommittee, there is no guarantee the full Senate will pass the bill given the current political dynamic in the Senate. If the House and Senate pass conflicting bills, the bills will have to go through a “reconciliation” process before the President would be able to sign a bill into law. We will continue posting as the bills work their way through the Senate. Special thanks to Mendel Simon for his contributions to this post. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Cheryl D. Fuchs Becomes WCM Partner. March 1, 2013 < Back Share to: WCM is pleased to announce that, effective March 1, 2013, Cheryl D. Fuchs is a Partner. Ms. Fuchs, who is admitted in New York and New Jersey, has been a WCM attorney her entire legal career. Cheryl's practice focuses on the defense of N.Y. Labor Law, construction and premises liability cases as well as offering coverage advice across the spectrum of commercial general liability policies. Cheryl takes pride in her zealous advocacy for WCM clients and looks forward to serving your needs in the future. If you have any questions, please contact Diana Mauriello, Communications Director at dmauriello@wcmlaw.com . Previous Next Contact

News Property Owner Is Not Neighbor's Keeper (NY) June 14, 2013 < Back Share to: In order for a plaintiff to maintain a viable claim under the labor law against a property owner, the property owner must own, or at least have some interest in the property where a plaintiff is injured. In Alvarez v Hudson Val. Realty Corp., 23 NY Slip Op 04300, plaintiff commenced an action against Hudson Valley Realty Corp., alleging violations of Labor Law §§§ 240(1), 241(6), and 200. In defense of the matter, Hudson Valley argued that it did not own the property where plaintiff was injured, but rather, was the owner of the abutting property. The Appellate Division, Second Department, upheld the trial court’s ruling, granting Hudson Valley’s motion for summary judgment. The Court held that Hudson Valley demonstrated its prima facie entitlement to judgment as a matter of law dismissing the causes of action asserting violations of Labor Law §§ 240(1) and 241(6) by establishing that it was an abutting property owner with no property interest in the premises upon which the plaintiff was injured, and it neither contracted for nor controlled the construction work on the premises. Further, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 by establishing that it did not own, occupy, or control the premises and that it did not have the authority to supervise or control the manner in which the work was performed. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Alternate Reality: NJ Court finds Coverage for Spoliation Litigation Strategy that Could Have Been August 22, 2011 < Back Share to: Typically, whether an insurer has a duty to defend is determined by the four corners of the complaint. But in Carlin v. Cornell, Hegerty, & Koch a New Jersey appellate court not only looked to facts that arose “during the resolution of the underlying dispute,” but also considered whether an alternate litigation strategy would have triggered coverage. In the original lawsuit, plaintiffs, employees of a construction company, alleged that they were exposed to high levels of lead while working on a construction project on the Ben Franklin Bridge; one of the allegations was that the construction company intentionally concealed information about the employee’s lead exposure. CIGNA provided a defense to the construction company, and a no-cause verdict was rendered in favor of the defendants after a jury trial. Plaintiffs then filed another lawsuit, alleging that the defendants fraudulently concealed or destroyed evidence (commonly known as “spoliation”) during the first trial. But CIGNA denied coverage, finding that such claims were not covered as an “occurrence” under its CGL policy. Ultimately, the trial court agreed with CIGNA. But the Appellate Division reversed, even though it agreed that the spoliation claims themselves were not covered under the policy. The Court held that there would have clearly been coverage if plaintiffs successfully moved for relief from the trial judgment based on newly discovered evidence," or "fraud… misrepresentation, or other misconduct of an adverse party." The Court found that plaintiffs’ spoliation complaint was, “in effect, an attempt to reopen the first litigation on the covered claim on the ground that it did not have all of the pertinent evidence.” Therefore, the defendant seeking coverage “understandably expected the insurer who provided the defense in the first action to do the same here regardless of the merits.” Because plaintiffs could have recovered damages for the covered personal injuries by way of motion to vacate the judgment in the personal injury action -- and because plaintiffs would not have been required to prove any intentional misconduct -- the defendants were, in essence, faced with covered and noncovered claims. Under such circumstances, a carrier is required to defend until all covered claims have been resolved. If you would like more information about this case, please e-mail mbono@wcmlaw.com Previous Next Contact

News WCM Selected as Law Firm of the Year by Pennsylvania Defense Institute July 10, 2025 < Back Share to: WCM is honored to announce that it has been selected as the Law Firm of the Year by the Pennsylvania Defense Institute ( https://padefense.org/ ) which is the Pennsylvania affiliate of the Defense Research Institute ( https://www.dri.org ). The award is a credit to the talent, passion and decency of all of the attorneys and staff who work in WCM’s Pennsylvania office. At the PDI’s annual conference at Bedford Springs ( https://lnkd.in/g9aQufm3 ) to present and accept the award are from left to right Ryan Blazure, President of PDI, WCM Partner Jim Scott, WCM Executive Partner Bob Cosgrove, WCM Partner DJ Dawson, WCM Associate Sarah Polacek and WCM Senior Associate Jason Laicha. https://www.linkedin.com/feed/update/urn:li:activity:7349240419337031680 Congratulations to all! Previous Next Robert J. Cosgrove Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Contact

News Labor Law 240 Applied Expansively to Fallen Fence Post October 2, 2008 < Back Share to: New York's Labor Law Section 240 has been a troublesome statute for defendants. At times, its reach appears nearly limitless. Such is the case of Romero v. Trump Apartments. In Romero, plaintiff was employed as a day laborer who was assisting in the removal of a perimeter chain link fence. Standing on the ground, he held up the fence's horizonal top frame, which was about 8 feet off the ground. During a mishap, this metal post became unmoored, falling less than 3 feet to strike plaintiff on the head. Two issues confronted the court. First, was plaintiff engaged in work protected by Section 240? Second, did the accident involve an "elevation-related" risk bringing it within the scope of Section 240? Not surprisingly, the motion court held that the demolition of a fence triggered Section 240 because it involved the demolition of a "structure." Further, although being struck by a falling object can trigger a Labor Law claim, the court ruled that a pipe falling 33 inches is not a de minimus distance. So much for the statute being limited to falls from a scaffold, ladder or a height. The practical effect was that plaintiff was granted summary judgment and the defendant was stripped of its right to claim that plaintiff was comparatively negligent to any degree. Our advice is simple. Never underestimate the scope of Section 240 of the Labor Law. Its reach is expansive and the effect of its application ominous: a breach of the statute results in strict liability and the defendant cannot argue that plaintiff was comparatively negligent. The goal for owners and general contractors is to shift liability to those contractors who were responsible for directing, supervising, and controlling the activities that led to plaintiff's injuries. http://www.nycourts.gov/reporter/3dseries/2008/2008_51887.htm Previous Next Contact

News Application of Revised "First Bite" Doctrine Results in Dismissal of Suit November 1, 2011 < Back Share to: In 2007, John Smith brought suit against Marijane Reilly because her dog broke free from its leash, ran into the street and collided with plaintiff Smith's bicycle. As a result of the collision, Smith was thrown over the handlebars of his bicycle and fell to the ground, causing injury. Defendant moved for summary judgment, citing that she had "no knowledge of her dog's alleged propensity to interfere with traffic." At trial, the Court denied defendant's motion, because the court ruled that the prior instances of the dog of escaping defendant's control and running towards the road constituted triable issues of material fact. The Court of Appeals disagreed and reversed, because the dog's prior actions were insufficient to raise a material issue of fact, since the dog had never specifically chased cars or bicycles before. The decision strongly suggests that in order for an owner to be liable for the actions of his/her dog, there must be evidence that the dog had a propensity to behave in a manner very similar to what is alleged in the case at bar. Here, the dog chased a bicycle, but because the dog had never specifically chased a bicycle in the street before, there was no triable issue of material fact regarding the dog's propensity. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07478.htm Previous Next Contact

News Court Reinforces High Standard For Proving Dangerous Condition (NJ) November 7, 2019 < Back Share to: In Deravil v. Pantaleone, the plaintiff was struck by a motor vehicle while crossing the street outside of a designated cross-walk at night while wearing dark clothing. The area where the plaintiff was struck lacked functioning street lights, and the trees and utility poles allegedly obstructed the view of the road for both pedestrians and drivers. Additionally, at the point of impact, the sidewalk abruptly stopped, which may have led to the plaintiff entering the roadway. Plaintiffs argued that the road was a dangerous condition, and Township and the County were liable for the plaintiff’s death under New Jersey Torts Claims Act (TCA). The court dismissed the claims against the Township and County, finding that the road was not in a dangerous condition and that the plaintiff chose to take the risk. Plaintiff appealed, arguing that the failure to use a cross-walk does not eliminate liability for creating a dangerous condition, and the abrupt termination of the sidewalk could be interpreted as a signal that a pedestrian must cross the street to continue their path. On appeal, the Appellate Court noted that, under the TCA, a dangerous condition means a condition of property that creates a substantial risk of injury when used with due care in a manner in which it is reasonably foreseeable that it will be used. In this case, no jury could conclude that the road was in a dangerous condition and the plaintiff’s use of the road was so objectively unreasonable that the condition itself did not cause the accident. This case is important because it highlights the standards that a plaintiff must meet to prove the existence of a dangerous condition under the TCA. Thanks to Heather Aquino for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact